Jagdish Chandra, J.—The plaintiff C.L Suri is the owner of House No. A-30, Link Road, Lajpat Nagar, New Delhi, and is the lessee of the land underneath this house under the defendant Union of India for a period of 99 years w.e.f 20th May 1953 vide lease deed dated 28th July 1953. The Indian Carpet Centre was inducted as a tenant by the plaintiff in the ground floor portion of this house on rent on 25th August 1969 for a period of one year for purely residential purposes, but this tenant, after some time started misusing the tenanted portion for commercial purposes for which reason the plaintiff filed eviction petition being petition No. 293 of 1975 before the Rent Controller which was dismissed on 31st August 1976 by Shri K.S Gupta, then Addl. Rent Controller, but during the continuance of the appeal filed by the plaintiff before the Rent Control Tribunal, the said tenant vacated the tenanted premises on 22nd December 1976 and as a consequence the appeal was withdrawn as having become infructuous.
2. A notice dated 29th October 1975 had been received by the plaintiff from the Assistant Settlement Commissioner of the Land & Development Office, requiring the plaintiff to remove the breaches observed in contravention of clause 1(vii) of the lease deed within 30 days of the receipt of the notice failing which action of re-entry of the property and cancellation of the lease was threatened. The plaintiff replied that notice by stating that he had been trying to evict his tenant by filing eviction proceedings and that the Addl. Rent Controller had already held that there was no misuser by the tenant.
3. Then vide letter dated 4th September 1980 the Assistant Settlement Commissioner informed the plaintiff that the department would regularise the afcreasaid breach in case the plaintiff paid additional charges for the change of use to the tune of Rs. 65,697.20 paise and this letter was followed with letter dated 20-4-83/16-5-83 wherein further action was threatened in case the aforesaid misuser charges were not deposited within 30 days of the receipt of this letter.
4. The aforesaid letters are alleged to be illegal and void as also that there was no misuser of the property and thus, there could be no question of any demand of misuser charges or threat by forfeiture of the plaintiff's rights in the aforesaid house in suit, and declaration to this effect was sought by the plaintiff in this suit.
5. The defendant filed the written statement and’ raised preliminary objections to the effect that the plaint was not sufficiently stamped and also did not disclose any cause of action against the defendant aserting that the plaintiff's own letters admitted letting out a portion of his house for commercial use in violation of the terms of the lease. The misuser charges claimed by the defendant from the plaintiff and the threat of forfeiture of the lease and re-entry of the house in suit were asserted to be justified with a prayer for the dismissal of the suit with costs.
6. The plaintiff controverted the pleadings of the defendant in the written statement and reiterated his own in the plaint and the following issues were framed:—
1. Whether there has been any violation of clause 1(vii) of the lease? OPD.
2. Whether the demand contained in letter dated 4.9.1980 of the defendant is enforceable? OPD.
3. Whether the defendants are entitled, to effect re-entry of the house on Tinte basis of their demand contained in the letter dated 4.9.1980? OPD.
4. Whether the plaint does not disclose any cause of action? OPD.
5. Whether the plaint is not sufficiently stamped? OPD.
6. Relief.
7. Issue No. 1:—Clause 1(vii) of the lease deed dated 28th July 1953 in favour of the plaintiff places the following embargo on the plaintiff regarding the user of the leased land:—
“not to use the said land and building that may be erected thereon during the said term for any purpose other than the purposes of constructing a house without the previous consent in writing of an officer appointed by the Lessor in this behalf; provided that the lease shall become void in the land is used for any purpose other than that for which the lease is granted not being a purpose subsequently approved by the said officer”.
8. The learned counsel for the plaintiff contended that the user or the purpose contemplated by this clause was that of constructing a house which could not be contravened without the previous consent in writing of an officer appointed by the Lessor in this behalf and that the lease in favour of the plaintiff could become void only if the land under-neath the house in question was used for any purpose other than that of constructing a house for which purpose the lease was granted. The only question calling for determination under this issue is whether the user of the ground floor of the house in dispute by Indian Carpet Centre, tenant of the plaintiff, for commericial purposes, amounted to a breach or not of the purpose mandated in clause 1 (vii). The bare reading of this clause goes to show that the only purpose permitted was that of constructing a house on the land in question. A house has admittedly been constructed on this land by the plaintiff. The user of the ground floor of this house for the purposes of an office or for commercial purposes is not hit in this clause. What is required is the construction of a house on this land. What the interpretation of this clause appears to be is that the and in question underneath the house in suit was to be used by the plaintiff only for the purposes of constructing a house thereon and not for any other purpose meaning thereby that the plaintiff could not keep the land in question for its user as an open space such as for tethering of cattle or heap of granary etc. In contradistinction to raising the construction thereon, and further the construction which could be raised by the plaintiff upon this land was to be only that of a house in contradistinction to the construction of a factory premises, shop or godown etc. The words “and building that may be erected thereon during the said term” would include structures erected on the land in suit could be only for the purposes of constructing a house on the said land and such a building could be, for instance, some type of structure to house the building material or even a small office for user by the architest or contractor or even by the plaintiff for the purpose of facilitating the construction of a house on this land. This clause does not in any manner talk of any misuser after the completion of the construction of a house on this land.
9. The learned counsel for the plaintiff in support of his contention has placed reliance on a judgment dated 3rd November 1982 of the Division Bench of this Court in Civil Writ No. 1110/73 wherein the interpretation of this very clause 1(vii) was given. Therein also the case of the Union of India (Land & Development Office) was that the term “house” in clause 1 (vii) could only mean a house for residential purposes and that as the first floor of the house was being allowed to be used by the lessee as office by the Life Insurance Corporation of India, there was a breach of this clause. This contention was repelled by the Division Bench with the following observations:—
“…… The aforesaid clause 1(vii), the breach of which is alleged to have been committed, requires the lessee of the land to construct a house. No further limitation is contained in the said lease. The terms of the lease do not state that the house will be used for residential purposes or will not be used for office purposes. All that the lease requires is that a house shall be constructed on the plot of land, the lease hold rights of which had been sold…”
10. No authority to the contrary was cited by the learned counsel for the defendant and so it is held that there has been no violation of clause 1 (vii) of the lease and this issue is decided against the defendant.
11. Issues No. 2 & 3: In view of my finding of issue No. 1, both these issues must be decided against the defendant and are so decided because the demand and the action threatened in the letter dated 4th September 1980 could be justified only if there had been any violation of clause 1(vii) of the lease which has not been found in this case.
12. Issue No. 4: The threatened action of forfeiture of the lease and re-entry of the house in suit as also the demand of additional charges for misuser were based only on the contention of the defendant regarding violation of clause 1(vii) of the lease for the reason of the user of the ground floor of the house in suit by the tenant of the plaintiff for the purposes of an office, which violation is not contemplated by clause 1(vii) of the lease deed. The plaintiff could attack the demand and threatened action of the defendant which the plaintiff did in the plaint. So, it cannot be said that the plaint does not disclose any cause of action and this issue is decided accordingly against the defendant.
13. Issue No. 5: No arguments were addressed by the learned couusel for the defendant on this issue. The suit being for declaration, the plaint has been correctly stamped under Schedule II, Item No. 17(3) of the Court Fees Act. This issue is, thus, found against the defendant.
14. Issue No. 6: In view of my above findings, the suit succeeds and so. I pass a decree for declaration as prayed for, in favour of the plaintiff against the defendant with costs.
Suit decreed.
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